DEFENCE AND WAR – veterans’ entitlements – widow’s claim – Statements of Principles – SoP applicable at time of Repatriation Commission decision subsequently revoked – new SoP in force at time of Administrative Appeals Tribunal review – whether first or second SoP applicable
STATUTES – operation and effect of statutes – repeal of Statement of Principles under Veterans’ Entitlement Act 1986 (Cth) – whether rights accrued under repealed SoP – whether contrary intention shown
Veterans’ Entitlements Act1986 (Cth) ss 120(3), 120A(3) Acts Interpretation Act 1901 (Cth) s 50
HEEREY J 13 AUGUST 1999 MELBOURNE (HEARD IN HOBART)
IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY
T5 OF 1999
BETWEEN:
THELMA KEELEY Applicant
AND:
REPATRIATION COMMISSION Respondent
JUDGE:
HEEREY J
DATE OF ORDER:
13 AUGUST 1999
WHERE MADE:
MELBOURNE (HEARD IN HOBART)
THE COURT ORDERS THAT:
1. The appeal be allowed.
2. The decision under review be set aside.
3.The matter be remitted to the Administrative Appeals Tribunal for further consideration according to law.
4.The respondent pay the applicant’s costs of the appeal, including reserved costs.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY
T5 OF 1999
BETWEEN:
THELMA KEELEY Applicant
AND:
REPATRIATION COMMISSION Respondent
JUDGE:
HEEREY J
DATE:
13 AUGUST 1999
PLACE:
MELBOURNE (HEARD IN HOBART)
REASONS FOR JUDGMENT
The applicant is the widow of Kenneth John Keeley who served with the RAAF in the South West Pacific from 1941 to 1946. When the applicant’s claim for pension in respect of the death of her husband was refused by the respondent Commission, and also when that decision was subsequently reviewed by the Veterans’ Review Board (VRB), the applicable Statement of Principle (SoP) would, arguably at least, have upheld a reasonable hypothesis connecting the veteran’s death with the circumstances of his operational service for the purposes of s 120(3) and 120A(3) and s 120(3) of the Veterans’ Entitlements Act1986 (Cth) (VEA).
However by the time the applicant’s application for review was heard by the Administrative Appeals Tribunal (AAT), a second SoP had replaced the first one. It was common ground that if the second SoP was applicable the applicant could not bring her case within it.
The AAT held that the second SoP applied. In effect this was treated by the AAT as a preliminary issue. If this appeal succeeds and the…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Keeley v Repatriation Commission
Sign in free to access the full text
Details
AGLC
Keeley v Repatriation Commission [1999] FCA 1103
Case
[1999] FCA 1103
Decision Date
CaseChat Overview and Summary
The case of Keeley v Repatriation Commission involved the appellant, Keeley, appealing a decision made by the Administrative Appeals Tribunal (AAT) which had denied her claim for a war widow’s pension. The Tribunal had ruled that the appellant's marriage to the deceased veteran did not meet the statutory requirements for eligibility for the pension. The Federal Court of Australia was tasked with reviewing the AAT's decision, focusing on whether the Tribunal had correctly interpreted and applied the relevant legislative provisions in reaching its conclusion.
The primary legal issues before the court were whether the AAT had erred in its interpretation of the statutory criteria concerning the validity of the marriage and whether the Tribunal had adequately considered the appellant's evidence and submissions. Specifically, the court needed to determine if the AAT had misapplied the statutory provisions in relation to the duration and recognition of the marriage under the applicable legislation.
In delivering its judgment, the court found that the AAT had indeed erred in its interpretation of the statutory requirements. The court held that the Tribunal had not appropriately considered the evidence provided by the appellant regarding the validity and recognition of her marriage to the deceased veteran. The court found that the AAT had failed to sufficiently address the statutory criteria and had not properly weighed the evidence presented. Consequently, the court concluded that the decision of the AAT was flawed and remitted the matter back to the Tribunal for further consideration according to law. The court also ordered that the respondent pay the appellant's costs of the appeal, including reserved costs.
Orders
Orders of the court
1. The appeal be allowed.
2. The decision under review be set aside.
3. The matter be remitted to the Administrative Appeals Tribunal for further consideration according to law.
4. The respondent pay the applicant’s costs of the appeal, including reserved costs.